How Good Is Your eDiscovery Data Collection Process?

Why comprehensive data collection matters

Collecting data for eDiscovery is like embarking on a scavenger hunt, where every clue counts. Lawyers are required to gather ESI from a wide range of sources, from emails and document management systems to mobile devices and social media.

But with the growing complexity of the digital landscape, it’s possible for even the most diligent legal teams to miss key pieces of evidence due to the complexity and volume of today’s data sources. Today, the question is not whether you are collecting all data, but whether you are collecting all potentially relevant data. Despite advancements in collection tools and platforms, the risk of missing critical data remains high.

In eDiscovery, every piece of data can be the key to unlocking crucial evidence. Missing even one document can result in legal consequences or financial penalties. Incomplete or improperly collected data can also raise issues regarding admissibility and the forensic integrity of the evidence. Throughout this article we return to two goals of effective collection: that of collecting in the right way to ensure forensic defensibility and collecting the right data to ensure relevance and proportionality, avoiding over-collection.

How can you ensure that your data collection process is comprehensive and defensible? By understanding data types that can be overlooked and implementing best practices to shore up your data collection processes. Identifying overlooked sources is critical because responsive evidence often resides outside traditional systems, and finding it early prevents costly re-collections and disputes.

How to identify commonly overlooked data sources

The scope of discovery is rather wide, as it involves going beyond traditional data sources such as corporate email systems and employee workstations. Consider these questions: Are you factoring in information stored on personal devices, external hard drives, or fitness trackers? How about ephemeral data stored temporarily in memory or logs on company servers? This matters, as process excellence depends on knowing where relevant ESI actually lives. Overlooked sources routinely contain responsive material; proactively including them strengthens defensibility, reduces re-collection risk, and keeps the scope proportional.

Here is a short list of data sources you should add to your data collection checklist.

Mobile devices

Text messages, instant messaging apps, call logs, and even GPS data can all contain critical information that is relevant to a legal matter. It’s essential to recognize the importance of this data and not mistakenly assume that it is inaccessible. Plus, the variety of operating systems and device configurations makes mobile collection more complex. For defensibility, preserve device/app metadata and maintain chain of custody; for relevance, scope by custodians, timeframes, and issues so you collect only what is responsive.

Specialized forensic tools are often required to extract data from encrypted apps, cloud-based backups, and device storage. Without proper handling, metadata from mobile devices—such as timestamps, geolocation data, and device IDs—can be easily lost or altered, compromising the forensic integrity of the data.

Collaboration tools

Platforms like Slack, Microsoft Teams, Zoom, and Google Workspace store vast amounts of data, including chats, shared files, meeting recordings, and collaborative documents. These tools store data in multiple places: individual messages, group chats, private channels, shared drives, and third-party app integrations. Use exports and APIs that preserve context and metadata for defensibility, and target channels, date ranges, and participants tied to the issues for responsiveness.

The structure of these platforms often involves embedded links, emojis, and dynamic content that require specialized tools and processes to capture accurately. Failing to account for these complexities can result in missing critical evidence.

Social media

Social media data can include posts, comments, messages, photos, videos, and other types of user-generated content, along with metadata that documents timestamps, locations, and interactions. Unlike emails or files stored on a corporate server, social media data can be transient, deleted, or modified, making timely collection essential. Furthermore, privacy settings and user agreements can complicate the collection process, as some platforms limit access to certain types of data. Capture native content with full metadata (handles, timestamps, URLs) for defensibility, and limit collection to custodians, platforms, and topics that map to your matter to maintain relevance.

Tools that specialize in forensic social media collection are necessary to capture native content and preserve its metadata for potential litigation.

Cloud-based services

Services such as Dropbox, Google Drive, Microsoft OneDrive, and iCloud offer easy access to shared files and collaborative projects, but they are decentralized and often not under the direct control of an organization’s IT department. Collect in-place using platform-native or forensic methods that retain versions and audit trails for defensibility; filter by ownership, folders, and date ranges to keep the set responsive and proportional.

One challenge with these services is the need for consent and cooperation from the custodians or account holders to access the stored data. Metadata associated with cloud-stored files, such as timestamps, authorship, and modification history, can be easily altered if files are downloaded or accessed without the proper forensic protocols. Legal teams must ensure that cloud-based data is captured in its native format and with all metadata intact to avoid authenticity challenges.

Wearable devices and Internet of Things (IoT)

These devices constantly generate and transmit data. Collecting data from them often requires specialized forensic tools and expertise, as the data may be encrypted, stored in cloud-based systems, or available only through manufacturer-specific protocols. Much of this data is ephemeral, meaning it may only be stored temporarily before being overwritten. Secure acquisition using validated forensic methods is essential for defensibility, and requests should be aligned to the time windows and sensors actually relevant to the claims and defenses.

To ensure that your data collection process captures everything, you must move beyond looking in the obvious, easy-to-collect places. That’s why it’s important to follow a methodical approach for data collection.

Best practices for preventing collection gaps

As comprehensive eDiscovery today requires more than collecting files from a desktop or email server, a methodical approach for data collection is important. How can you prevent gaps in your collection process? The answer lies in a proactive approach that includes the following steps. Your playbook should ensure both defensibility (how you collect) and responsiveness (what you collect).

Develop a comprehensive data map

A data map identifies all potential data sources within an organization, including servers, cloud-based storage, mobile devices, and apps. Work with IT teams and custodians to map out all potential data sources before collection begins. This will help identify hidden or unusual repositories, so you don’t miss anything. Map sources against the twin goals—what must be preserved for defensibility and what is in scope for responsiveness—to drive proportional collection.

Engage forensic experts

Forensic experts use specialized tools like write blockers and hashing algorithms to collect data without alteration or corruption. They can also assist in recovering deleted files and identifying ephemeral data. Their expertise ensures that metadata is preserved and that all sources are captured properly. Their validated methods underpin defensibility; pair them with counsel-driven scoping criteria so collections remain tightly aligned to what is responsive.

Anticipate data in motion

Data is constantly being created and modified. Act quickly to preserve data before it’s altered or deleted. Disabling automatic deletions and freezing relevant data sources through legal holds can prevent critical evidence from being lost. Preserve systems early to protect defensibility while coordinating time-bound legal holds that reflect the actual period at issue, ensuring responsiveness.

Document the chain of custody

Maintaining a clear chain of custody ensures the authenticity of collected data. Log every interaction with data, tracking how it was handled, transferred, and stored. Documentation is essential to verify the integrity of the evidence in court and prevent gaps in the collection process. Clear documentation proves defensibility and helps resolve scope challenges by showing exactly what was (and wasn’t) collected.

Recover deleted or archived data

Be sure to account for legacy systems and archived data when planning data collection. Deleted or archived data may still be recoverable through forensic methods. Special tools can retrieve deleted files or recover fragments stored in unallocated space. Use targeted recovery where proportional and relevant; avoid over-collection by validating that the restored data maps to the claims and defenses.

By following these strategies, you can close gaps in data collection, ensuring that you gather and preserve all relevant in a defensible manner.

Where to get help with data collection

Self-collection, i.e., where custodians gather their own data, almost always falls short. Risks include selective preservation, altered or stripped metadata, incomplete scope, and weak chain-of-custody documentation. Courts often view such efforts skeptically, increasing the chance of sanctions or re-collection orders. Independent, tool-based collection mitigates these risks. Are you confident that your current collection workflows capture all the data? If not, it might be time to put your data collection process to the test.

Effective data collection involves two things working together: comprehensive coverage of relevant sources and streamlined, defensible processes, allowing you to capture only what matters for relevance and responsiveness, as opposed to everything. This is undoubtedly challenging in today’s complex digital world.

Download our data collection practice guide, “The Grand Scavenger Hunt: Collection Fundamentals,” to learn more best practices for data collection and ensure that your legal team is prepared for evolving eDiscovery challenges.